Obamacare and Judicial Activism

Last week the Supreme Court of the United States heard oral argument on whether to overturn Obamacare. I had written previously in Liberty that I suspected Obamacare would stand, and estimated a mere 1% chance of the vile, disgusting step towards socialized medicine being struck down.

But amazingly, Obama’s Solicitor General, who argued the case, was, by most accounts, totally incompetent. He got so tongue-tied that he had to be verbally bailed out by Justice Ginsberg — several times. He could not articulate a limiting principle for where the powers of government would stop if Obamacare stands. This frightened some of the justices (although, in fairness, no such limit can be articulated, because Obamacare is a slippery slope towards socialism.)

Most importantly, Justice Kennedy said things suggesting that he would probably vote to strike Obamacare down. Kennedy is the moderate justice who holds the crucial swing vote between four liberals (all of whom are thought to support Obama’s health care bill) and four conservatives (who are believed to oppose it). So the legal community now suspects that Obamacare is doomed. The so-called “individual mandate” is most likely going to die, and the entire convoluted, ungodly abomination might get dragged down with it, thus ending America’s nightmarish experiment with socialized medicine.

This is great news for libertarians and bad news for President Obama.

How did Obama respond? This is how: by holding a press conference in which he bullied the justices, threatening them with the charge that overturning his law would be “judicial activism” and noting that the Supreme Court is not elected whereas Obama’s Congress, which narrowly passed his healthcare plan, was elected. His statement contains two glaring flaws.

1. Yes, Congress is elected and the Supreme Court isn’t. That is the beauty of the Founding Fathers’ scheme, that the rights of individuals are safeguarded by courts which do not answer to the whims and emotions of the hysterical and easily manipulated masses. Yet voters had sent a clear message that they did not want Obamacare passed, when they elected Senator Brown of Massachusetts. The Brown election was widely viewed as a referendum on Obamacare. It was an election in which a Tea Party candidate won in a strongly left-leaning state. The bill only passed because of procedural maneuvering by the then-Democratic House. The 2010 election of the Tea Party House was a resounding rejection of Obamacare by the American people. Once again, Obama has a mass of facts wrong.

2. The practice of “judicial review,” the name for courts overturning unconstitutional laws, dates back to the famous case of Marbury v. Madison (1803). Since that case was decided, it has been well established that the courts have the power to overturn laws that violate the Constitution.

It is true, of course, that conservatives often bemoan “judicial activism,” and now Obama is bemoaning it. So what is the difference between judicial activism and judicial review? Is it merely that if you like it you call it judicial review and if you dislike it you call it judicial activism?

I do not believe that’s the truth. I would offer a deeper libertarian analysis: the Constitution of the United States was designed to limit the powers of government and protect citizens from the state, as a reaction by the American Revolutionaries to the tyranny of the British empire, which they had recently defeated. Democrats love to say that the Constitution is a “living document,” which means that the Constitution changes to reflect the desires of the public (which, they believe, have become ever more leftist since the American Revolution). But the meaning of the Constitution is clear, and it does not change. The argument to overturn Obamacare comes from the fact that Congress has only the enumerated powers given it by the constitution. Obamacare sought to use the Commerce Clause, which gives Congress the power to regulate “interstate commerce,” in order to effect a partial nationalization of the healthcare industry. But as I argued before, and as Justice Kennedy implied at oral argument, this is far beyond what the Commerce Clause and the cases interpreting it explicitly permit.

So it will not be judicial activism but judicial review, which consists of faithfully conforming the law to what the Constitution allows, if the Supreme Court overturns Obama’s health care plan. It is judicial activism when leftist judges follow the philosophy embodied in the legal theories called “legal realism” and “critical theory.” These theories hold that there is no such thing as an objectively correct or incorrect interpretation of the law, and therefore a judge is free to rule as his or her subjective feelings on morality and justice dictate (and note that somehow these feelings are almost always Marxist or leftist feelings).

Critical theory, which explicitly attacks the legitimacy of “legal reasoning,” is hugely popular on many law school campuses. Many of the lawyers and judges of the future may buy into it. But when the Supreme Court rules on Obamacare in June of this year, I hope it will be clear to the Marxists that they don’t run America quite yet.

About this Author

Russell Hasan lives in Connecticut. He is a graduate of Vassar and graduated with Honors from the University of Connecticut School of Law. His passions include philosophy, libertarianism, computer programming, and the New York Yankees. His most recent books are the libertarian political treatise Golden Rule Libertarianism and the epistemological essay The Apple of Knowledge, available for Kindle, Nook, and iPad.

Somebody’s Gonna Win

Our cleaning lady was smiling widely as she polished our dining room table. She was in such a good mood she didn’t drop or break a single goblet or plate on the granite kitchen counter — as was her custom, usually two a visit.

Had she finally found her Prince Charming? I impulsively asked Betty, let’s call her, “Why so happy?”

“I’m gonna win the Tennessee State Lottery,” she giggled, then uttered the declaration immortalized by losers: “Somebody’s gonna win — might as well be me.” The booty amounted to hundreds of millions, because counter to the mantra, nobody had won for eons. Today they’d pluck the lucky number out of a barrel. And Betty had 25 tickets. How could she lose? They only sold 100,000 or so.

Lotteries? A verification of Bastiat’s contention that the state’s one form of expertise is “plunder.” Whatta racket! Of course, you’ll find better odds at your local racetrack or casino. And to heighten the state’s hypocrisy: gambling is illegal in your own home. The letter of the law says you and your Wednesday night poker club can end up in jail, subsisting on grits and bread crusts.

It wouldn’t grate so badly on my sense of justice if the state solicited gambling gangs in a formal competition in which the main variable was payout vs. ticket income. As an 87% libertarian, I believe people should be allowed financial ruin if they so desire.

But it should not be sponsored by the same state that prohibits gambling. It prohibits theft, too, of course, but its main source of revenue is taxes — a euphanism for theft. Theft is theft, so what if they patch my street with tar every three years? They provide schools, too, but the real value of roads and schools and such services never quite equals the take from taxes. And you can’t sell hooch, either, but the state can.

By the way, I’m quite proud that my state, Alabama, amid flagrant corruption from the gambling lobby, rejected a lottery. It’s Tennessee that caved in. Coincidentally, the purchase of mansions, yachts, barrels of caviar, and Rolexes by state legislators skyrocketed. Supply and demand, you know. I’m waiting for the states to open up a string of escort services. Quite legal, if run by the state.

About this AuthorTed Roberts' humor appears in newspapers around the US and is heard on NPR.

The Latest EV News

I like to stay informed on the latest developments in electric vehicles (EVs)—in other words, with the amazing idea of trying to resurrect a technology that died a century ago, with the advent of the internal combustion engine. EVs are a retro-idea so captivating to our genius president that he has been willing to lavish billions of taxpayer money on funding EV makers. It’s easy to play at being a venture capitalist when you’re using other people’s capital.

A new Wall Street Journal article reports that Azure Dynamics, a Canadian company that, in partnership with Ford, makes electric vans for sale in Europe and America, has stopped production of its e-vans and filed for bankruptcy. It did this in spite of receiving millions of dollars in federal grant money, including a recent $5.4 million grant to work on a new electric inverter.

Azure hit the wall after making a miserable 508 e-vans (and retrofitting 1,500 Ford vans to make them hybrids) this year, and only 800 last year.

Ford is now worried about who will service the damn things, and 120 of the company’s 160 workers are looking for work.

The WSJ piece also notes that recent sales of Nissan’s EV (the Leaf) and GM’s EV (the Volt) have been lousy. Fisker Automotive has had two recent recalls and is jonesing for another government loan. Its battery supplier, A123 Systems, has just issued a recall of its products, and is looking for suckers—pardon me, investors — to come up with $55 million to cover the recall.

Earlier this year, Bright Automotive went dim — it filed for bankruptcy when it could not get any more federal subsidies. Last year, EV maker Think Global failed miserably, leaving Indiana with a nice, empty factory. Think Globally, fail locally — what a great business model!

About this Author

Gary Jason is an academic philosopher and a senior editor of Liberty. His recent books, Disturbing Thoughts: Unorthodox Writings on Timely Issues and Philosophic Thoughts: Essays on Logic and Philosophy are both available through Amazon.

The New Untouchables

A recent study in the UK found that more than half of smokers lie to family and friends about the extent of their habit. And why wouldn't they? Anti-smoking sentiment is now so prevalent that cartoons are retroactively edited to delete animated cigarettes, and movies that still allow actual smoking are castigated with the same moral fervor once (and still) directed at X-rated films.

Nothing has helped me understand the social impact of stigmatizing “illegal drug users” as much as watching the stigmatization of smokers over the last decade or so. Quite apart from whether smoking is as damaging as reported, the marginalization of those who choose to do it has been instructive.

Once a socially respectable and sexy practice, lighting up a cigarette now converts the puffer into a pariah and even into a child abuser by means of the “toxic” secondhand smoke. Companies require smokers to conduct their filthy habit on the pavement outside, despite subzero weather. Some refuse to extend health insurance to smokers; others refuse to hire them at all. Public areas open to the wind and weather have been closed to smokers. Weighing the smoking-status of battling parents is a growing trend in child custody cases.

All this has occurred while cigarettes are still legal and tobacco companies reap billions in profits. While “victims” of obesity receive love and sympathy, “victims” of smoking receive hatred and contempt. And it has occurred despite the fact that — unlike illegal drugs — no one seriously accuses cigarettes of causing prostitution, theft, impaired driving, or reduced judgment. Nor are cigarettes a slippery slope to heroin. But despite the absence of such horrendous accusations, the smoker is despised and shamed. Even as she hands over more and more tax money for the privilege of consuming a legal product, the government targets the smoker with panic-inducing campaigns such as the one underway from the CDC, an agency that has invested $54 million tax dollars to promote televised “public service” announcements and posters with revolting images.

I've watched in wonder as society has created a reviled class of people virtually out of thin air.

About this AuthorWendy McElroy is editor of ifeminists.com and author of "The Reasonable Woman."

Impudence, Sir, Sheer Impudence

In his history of England, the great classical liberal Thomas Macaulay continually used the word “impudent” to describe the proceedings of the English kings as they labored to find new ways of invading their subjects’ liberties. The word has ironic truth. We think of someone as “impudent” when he lodges obnoxious objections to the doings of people holding justified authority — but unjustified authority is impudence as well, and it is almost always worse.

This is the year of impudence.

President Obama impudently spends trillions he doesn’t have, and sends the bill to us, and future generations, as if only he and his friends mattered. His friends, in turn, spend virtually all their time telling us things that aren’t true, as if we weren’t smart enough to detect the fraud.

Government labor unions impudently insist that the nation, and the citizens of every state and city, must bankrupt themselves in order to provide luxurious retirements for people who, in many cases, impudently didn’t do a lick of work while they were “employed.”

Now justifiably-former Senator Santorum impudently lectures a nation of other adults about the evils of the “pandemic” of “pornography,” insisting that he knows it is “toxic” for marriages, “relationships,” and, I suppose, the birds and the bees, and promising that he will try to ban it.

Anyone who knows anything about what Santorum’s website calls “relationships” can think of some that may have been saved by the judicious use of “pornography.” (Yes, and some that may have been harmed. Is that the business of the law, or Sexologist in Chief Santorum?) And it would be funny, if it weren’t so cruel, to think about federal agents swooping down on some 90-year-old widower in North Dakota who, like the old bathtub-gin artists, whiled away his hours making his own dirty stories and pictures, and possibly purveying them to some other old degenerate.

But the major effect of Santorum’s remarks — nay, of his very being — is impudence, sheer impudence. Who does this man think he is? What item in the Republicans’ limited-government agenda does he suppose gives him, or any other politician, the right to act as Father Inquisitor to fellow adults?

Of all the year’s disgusting performances, this, to me, is the most disgusting, because it is the most impudent.

So far.

About this Author

Stephen Cox is editor of Liberty, and a professor of literature at the University of California San Diego. His recent books include The Big House: Image and Reality of the American Prison and American Christianity: The Continuing Revolution.

A Step in the Right Direction

When there is good news, I will report it. In our mathematically “challenged” country, when people add 2 and 2 and — finally! — get 4, I will celebrate. I’m just that kind of guy.

To the idiocy of recent American energy policy — to the extent we have ever had one — I have devoted considerable attention in these pages. I’ve criticized it under Bush, and even more under Obama, because while Bush’s policy (which was to encourage both fossil fuel and “green energy”) was partly idiotic (the green part), Obama’s (which has been to end fossil fuels and substitute only green energy) has been completely, insanely idiotic.

But the free market, led by entrepreneurs (as opposed to academics, bureaucrats, or other parasites), working primarily on private property (as opposed to public lands, which this administration has locked away), and using private capital (as opposed to taxpayer money), has created a Renaissance of oil and natural gas production.

Even as solar, wind, and biofuel energy has generally proven economically unviable even with massive taxpayer subsidies, the new, unconventional, fossil fuel production — from sources such as shale formations and oil sands deposits, by hydraulic fracturing combined with horizontal drilling — has proven very viable, commercially. It has proven viable, please note, despite a firestorm of new regulations created by the Obama administration, which is eager to choke it off.

That's good news. Here's more.

The symbol of our idiotic energy policy is surely the Chevy Volt, produced by a socialized auto company but poorly received by almost all of society. It has been so poorly received that Government Motors has announced that it is suspending production of the “Sparky Lemon.” Even with massive federal and state subsidies, the whole EV concept has been a flop.

But a recent article in the WSJ reports some good news. A number of car makers are producing cars and trucks that can run on compressed natural gas (CNG), that now inexpensive and clean-burning fuel.

Start with Chrysler. It is announcing plans to build a line of bi-fuel (gas and CNG) powered Ram trucks. And GM is announcing that it will build bi-fuel Chevrolet Silverado and GMC Siena pickups in the fourth quarter of this year.

Honda Motor Company (not being government-run!) is nimbler. It has been selling CNG Civics since 1998 at 200 dealerships spread over 36 states. The starting price for these cars is about $26,600.

Ford, which already for several years has been offering CNG conversion kits for some of its cars, has announced that it will start offering some of its pickups with the option.

CNG-powered vehicles make great sense (as I have argued elsewhere). We can get all the natural gas we need from domestic sources, and it is relatively cheap. Indeed, you can buy conversion kits for any car, and gas compressors for your garage. But it makes most sense if the automakers make the cars powered by CNG right on the factory floor. First, that saves money — pure CNG cars don’t need catalytic converters, for example. And there are economies of scale.

Widespread conversion will take years, because people will move to CNG vehicles only when there is a widespread network of gas stations with CNG pumps. Still, it is a welcome development.

If Obama were sincere when he says, “My administration will take every possible action to develop this energy [natural gas],” he would merit some praise, and I would be happy to supply it. The problem is that in this matter (as in many others), he is lying through his teeth. He has bitterly fought fracking, using every tool in his administration — the Department of the Interior, the SEC, the Department of Energy, and even the Department of Agriculture — while locking away as much public land as he could.

Let’s hope a Republican administration (should we be lucky enough to see it replace the current, benighted one) would truly encourage the transition of vehicles to natural gas, and this country to energy independence. Most of the Republican candidates at least get energy, whatever else they don’t get.

About this Author

Gary Jason is an academic philosopher and a senior editor of Liberty. His recent books, Disturbing Thoughts: Unorthodox Writings on Timely Issues and Philosophic Thoughts: Essays on Logic and Philosophy are both available through Amazon.

They Shoot Owls, Don’t They?

Some years ago, I wrote a piece in these pages about the infamous spotted owl. Under the misguided Endangered Species Act of 1990, the spotted owl was declared "endangered" (meaning, of course, "endangered by man"). As a result, the logging industry in Washington, Oregon, and Northern California was severely curtailed to “save” the bird. Tens of thousands of jobs were killed off, rates of alcoholism, divorce, and suicide spiked in the logging communities where formerly productive and proud loggers were reduced to living off the dole. Communities died.

But it turned out that the primary reason the spotted owl was dying was that another owl — the barred owl! — was moving in and taking over the wimpy spotted owl’s niche.

In short, it was natural biological evolution at work. As I noted then, 90% of all species that ever existed on this planet went extinct before hominids ever existed.

You would have expected hearings on this. You would have expected Congress investigate the bureaucrats who made a cold-blooded decision to terminate the livelihoods of the tens of thousands of victims. You would have expected that Congress would then grill the biologists who decided that it was the timber industry and not ordinary evolution that was to blame for the spotted owl’s plight. You would have expected panels of economists to testify about the cost to society of this stupid mistake.

But government almost never investigates its own mistakes and frauds. It prefers to investigate mistakes and frauds by private industry.

Indeed, when government makes a policy mistake, not only doesn’t it investigate itself, it just keeps pushing the policy further. A recent dispatch illustrates this with complete clarity.

The AP reports that even after shutting down much of the logging industry, the spotted owl continues its die-off. Its population in the Continental US has fallen by 40% in 25 years. The more aggressive barred owl just keeps taking over.

So the Obama administration, led by hardcore environmentalist Interior Department Secretary Ken Salazar, has taken the next “scientific” step.

It has ordered the shooting of barred owls!

Yes, in the name of wildlife preservation, the Interior Department will start slaughtering wildlife! I mean, Kafka couldn’t have dreamt up this daffiness.

So the hard-ass, kick-ass barred owls are facing execution for daring to win the evolutionary race with the sensitive, limp-taloned spotted owls. No doubt Darwin is spinning in his grave.

Since these damned rodent-munchers are spread over 24 million acres of forest, we are talking about a hell of a lot of shooting.

What is even more absurd is that this administration — which intends to gun down the gangsta owl — is totally anti-gun.

Maybe Obama and Salazar could contact the Mexican drug lords whom Ken Holder's Justice Department helped to arm, and have them do the killings. It might be enough for Salazar to spread the rumor that the barred owls are importing drugs, thus challenging the hoodlums in their own ecological niche.

Just a thought.

About this Author

Gary Jason is an academic philosopher and a senior editor of Liberty. His recent books, Disturbing Thoughts: Unorthodox Writings on Timely Issues and Philosophic Thoughts: Essays on Logic and Philosophy are both available through Amazon.

Who are the Real PIGS?

As Europe continues to flounder, and as people continue to wonder whether (or more likely, when) Greece is going to default on its sovereign debt, various commentators have bandied the epithet “PIGS” (or “PIIGS”, depending on which nations a commentator wants to include).

By this acronym they refer to a group of countries — Portugal, Ireland, (Italy), Greece, and Spain — that have borrowed profligately, unlike such disciplined places as France, Germany, and the United States. What the miserable PIIGS need to do is start getting their snouts out of the trough— learn to manage their economies efficiently, as their betters do.

It’s obvious that the PIIGS need to liberalize their economies and better manage their fiscal houses. But the morally supercilious tone of the commentary annoys me. I don’t think the US or the major European states are in any position to be giving lectures. Their own levels of debt are outrageous, too.

A recent report brings the point home. If you don’t look at sovereign debt by sheer amount, but look instead at per capita debt — that is, take the aggregate national debt and divide it by the number of citizens in a country — you will see that the PIIGS aren’t as piggish as we are.

Spain’s per capita debt is $18,395. Portugal’s is slightly more, at $19,989. But France’s per capita debt exceeds these two by a wide margin. It’s $33,491.

Again, Greece is outrageous at $38,937, Italy at an amazing $40,475, and Ireland — Erin go Bragh!—at a staggering $43,887.

But the US, the paragon of fiscal rectitude, already stands at $44,215 per capita — more porcine than any of the PIIGS. And under Obama’s latest budget plan, that debt will reach $75,000 per capita (in current dollars) within a decade.

Americans can truly join the PIIGS as they squeal “Oink! Oink!”

About this Author

Gary Jason is an academic philosopher and a senior editor of Liberty. His recent books, Disturbing Thoughts: Unorthodox Writings on Timely Issues and Philosophic Thoughts: Essays on Logic and Philosophy are both available through Amazon.

The Give Back Game

This morning when I arrived at my job as the Director of Learning Centers for the college where I teach, the following directive was waiting in my inbox: “Join us for a celebration of service as We Give Back!” My first thought was, “Give what back? Did we borrow something?” I certainly don’t remember taking anything that doesn’t belong to me. Well, I did take a pencil home once. I suppose I could give that back. But I don’t see any reason to celebrate its return with a bunch of hoopla and publicity.

The point is, I’m tired about all this “let’s give back” rhetoric. If my college is really concerned about “giving,” how about “Let’s Give Teachers Enough!” Most of the teachers I know work second jobs and take on extra courses in order to supplement their meager incomes. We do all the teaching, and we get paid half what the administrators earn. If that. No wonder they feel guilty.

Moreover, we have our own service projects, thank you very much. I happily do things for my church, my family, and my friends. I consider teaching itself to be a community service project of sorts. But I don’t keep score. I’m not “giving back.” I do it because I want to. I don’t need to get involved in some do-good project at the school where I work, just so they can publicize it and make themselves look good. If they think they’ve taken too much from someone, they can give it back themselves.

Come to think of it, I use my own pens, pencils, and paper supplies at school so often that I don’t really need to feel guilty about taking that pilfered pencil home. In fact, I think I used it to grade papers. On my own unpaid time. Now who’s going to give that back?

About this Author

Jo Ann Skousen is the founding director of the Anthem Libertarian Film Festival and a co-producer of FreedomFest, where 2,500 attendees and 200 speakers gather each year to discuss new ideas in science and technology, history and politics, health and well-being, art andliterature, economics and finance. This year’s FreedomFest is in Las Vegas on July 8–11, and its theme is Discover the New American Dream.

More Solyndra Stink

The stench of corruption that characterizes the Solyndra scandal — the affair of the so-called green energy company, run by a billionaire Obama crony, that cost taxpayers a fortune — permeates the whole green energy scene.

But a recent article — amazingly, in the Washington Post, hitherto a bastion of Obama Regime support — turns over yet another rock, exposing yet more maggots crawling around the putrid Department of Energy (DOE).

What is humorous about this piece is that it focuses on “venture capitalists” who were in on the, shall we say, less idealistic side of the green industry.(Obama, by the bye, raised more than twice as much campaign money from the venture capital industry as did his rival McCain.) The listed include many worthy luminaries.

Sanjay Wagle was a major fundraiser for Obama in 2008, leading a group of greenies called “Clean Tech for Obama.” He then left his company, Vantage Point Venture Partners, to join the DOE team in charge of doling out $80 billion in green energy subsidies. Is it any coincidence, comrades, that companies in which Vantage Point had invested raked in $2.4 billion from the DOE slush fund?

David Danielson left General Catalyst to join Obama’s DOE. Subsequently, the DOE handed out $105 million to three companies backed by General Catalyst. The DOE denies any connection here — pure coincidence.

David Sandalow is a longtime Democrat player (he was part of the Clinton Administration as well as a fellow at the Brookings Institute, a liberal thinktank). He was paid nearly a quarter of a million dollars by venture capital company Good Energies (don’t you just love these names?) the same year he left it to join the DOE (2008). Again, according to the DOE, it is pure coincidence that SolarReserve, one of the companies invested in by Good Energies, scarfed up $737 million in DOE loans.

Steven Spinner (a marvelously Dickensian moniker) raised over a half-million bucks for Obama. He was then made a loan advisor to the Green Regime’s DOE, which awarded venture capitalist firm Wilson Sonsini’s client firms $2.75 billion in various forms of financing. By another astonishing coincidence, Spinner’s wife just happened to be working for — Wilson Sonsini!

John Roos was a major “bundler” for Obama’s 2008 race. He was also CEO of Wilson Sonsini when its clients received all that DOE pelf.

Steve Westly was another big donor-bundler for the Obama campaign. He is the founder of venture capitalist firm Westly Group. He also served on the DOE advisory board, the same DOE that forked over $600 million to companies invested in by the Westly Group.

David Prend is head of the venture capital firm Rockport Capital. Prend has long been affiliated with the DOE, going back to the most recent Bush administration, and continued his role under Obama. Companies supported by his firm (including the infamous Solyndra) received $668 million in money from the DOE.

Some years back, I reviewed a great book by Arthur Brooks, Who Really Cares?, which showed conclusively that progressive liberals are actually far less charitable on average than people who don’t support redistributionist governmental policies. That is, progressive liberals generally were shown to be liberal only with other people’s money.

What is emerging now is a corollary to that thesis. It is now obvious that venture capital firms run by progressive liberals venture only other people’s capital.

About this Author

Gary Jason is an academic philosopher and a senior editor of Liberty. His recent books, Disturbing Thoughts: Unorthodox Writings on Timely Issues and Philosophic Thoughts: Essays on Logic and Philosophy are both available through Amazon.